[2022] KECPT 192 (KLR)

Ilovi v NHIF Sacco Society Limited (Tribunal Case 190 of 2021) [2022] KECPT 192 (KLR) (Civ) (17 March 2022) (Judgment)

Neutral citation: [2022] KECPT 192 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 190 of 2021

J. Mwatsama, Vice Chair, M. Mbeneka & B. Akusala, Members

March 17, 2022

Between

Catherine Wanjiku Ilovi

Claimant

and

NHIF Sacco Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 15. 4.2021 filed on 16. 4.2021. The Claimant avers to have been a member of the Respondent holding member number 00768 and she made monthly contribution to the Respondent to the tune of Kshs. 486,500/ until the year 2014 when she withdrew her membership from the Respondent giving them the 60 days notice.The Respondent partially paid the Claimant Kshs. 210,000/= leaving Claimant balance of Kshs. 276,000/=.The Claimant against Respondent is for :a.A refund of Kshs. 276,000/=b.Interest on (a) above.c.Costs of this suit.d.Any other relief the Honourable tribunal may deem fit to grant.

2. The Respondent filed a Statement of Defence dated 28. 4.2021 on 6. 5.2021. The Respondent denied the claimant’s shares amounted to Kshs. 276,000/= as there was a non-refundable Share Capital of Kshs.20,500/= which Claimant did not factor.The Respondent further state it’s By-laws regarding withdrawals and that Claimant has not exhausted all avenues before filing suit thus the claim is premature and claim ought to be dismissed.

3. The matter being one of refunds parties were directed to file written submissions in a bid to expedite and finalize the matter.The Claimant filed their written submissions dated 6. 9.2021 on 9. 9.2021 and the respondent filed their written submissions dated 10. 1.2022 on 11. 1.2022. The Claimants in their submissions rely on the Statement of Claim and list of documents filed dated 15. 4.2021 filed on 16. 4.2021.

4. The evidence the Claimant’s Statement of Accounts- documents number 4 and letter from Respondent dated 24. 6.2016 acknowledging her withdrawal stating a backlog.The Respondent on the other hand in their pleadings and written submissions submit the Respondent has not disputed the Claimant was their member but reiterated they informed Claimant of their liquidity and financial issues causing inordinate delays. The Respondent insist the suit is premature as claimant failed to follow the laid down By-laws to access her funds from the Respondent which By-laws were not attached or documents filed to enable the Tribunal appreciate what the Respondent was referring to.That currently the Respondent is overwhelmed by the demands of members.Further the interest rate as per the By-laws of Respondent is capped at 1% per annum making it 12% per annum.The Respondent avers he is willing to liquidate the decretal sum by paying monthly instalments until payment is completed in full. The Respondent refer the Tribunal to Order 21 Rule 12 (1) and (2)Civil Procedure Rules 2010.

Analysis 5. Upon consideration of all pleadings, documents and written submissions by parties the issue for determination is:

Issue one:Whether the Claimant’s refund by the respondent is to be by instalment?The Claimant through her Statement of Account has proved she had saved Kshs. 486,000/= with the Respondent on withdrawal the Respondent paid her Kshs. 210,000/= in instalments of Kshs. 140,000/= on 26. 9.2017Kshs.50,000/= on 30. 5.2019Kshs. 20,000/= on 8. 7.2019 and now has a balance of Kshs. 276,000/=.The Respondent does not deny the same but seek for time to pay the balance in instalments. If indeed the Respondent was genuine since 2019 when the last instalment was made and filing of the suit in the year 2021 it might have been prudent and out of goodwill continued making instalment payment to Claimant even though in an uncoordinated manner.We indeed find the Claimant has a case against the Respondent and thus Respondent is to pay.The question on whether the Respondent is to make instalment payment the same should not arise.

6. The Respondent had an opportunity to do so and failed. There were payments made in September 2017, May 2019 and July 2019. Why the Respondent chose not to continue with instalment payment as they had begun is beyond us.The Claimant whether willingly or unwillingly did not refuse the instalments and only filed suit when there were no further payments made.The case of Diamond Star General Trading LLC-vs- Ambrose D.O.Rachier carrying on business as Rachier & Amollo Advocates [2018] eKLR, that cited Keshvaji Jethabhai & Bros Limited vs Saleh Addulla[1959] EA 260 lays down the principles that should guide the court in the exercise of discretion in such matter and states as follows:a.Whilst creditors’ rights must be considered each case must be considered on its own merits and discretion exercised accordingly;b.The mere inability of a debtor to pay in full at once is not a sufficient reason for exercise of the discretion;c.The debtor should be required to show his bona fides by arranging prompt payment of a fair proportion;d.Hardship of the debtor might be a factor, but it is a question in each case whether some indulgence can fairly be given to the debtor without prejudicing the creditor.”We find the Respondent have not satisfied these conditions as intended. To this end we find in favour of Claimant against Respondent for Kshs. 255,500/= having deducted the Share Capital of Kshs. 25,500/= plus total amount is Kshs. 255,500/= plus cost and interest from date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF MARCH, 2022. Hon. J. Mwatsama Deputy Chairperson Signed 17. 3.2022M. Mbeneka Member Signed 17. 3.2022Mr. B. Akusala Member Signed 17. 3.2022C. Maina Tribunal ClerkOnanyi Gichana holding brief for Makena Advocate for the RespondentMs. Onyieyo holding brief for Mr. Andati Advocate for the Claimant.Hon. J. Mwatsama Deputy Chairperson Signed 17. 3.2022